BIRDEYE L. MIDDLETON, Claimant-Appellant,
ERIC K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in No. 10-4222, Judge Alan G. Lance, Sr.
Michael S. Sawyer, Covington & Burling LLP, of Washington, DC, argued for claimant-appellant. With him on the brief was Einar Stole. Of counsel on the brief were Barton F. Stichman and Katy Schuman Clemens, National Veterans Legal Services Program, of Washington, DC.
Alex P. Hontos, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were Stuart F. Delery, Principal Deputy Assistant Attorney General, Jeanne E. Davidson, Director, and Scott D. Austin, Assistant Director. Of counsel on the brief were Michael J. Timinski, Deputy Assistant General Counsel, and Meghan Alphonso, Attorney, United States Department of Veterans Affairs, of Washington, DC.
Before Lourie, Plager, and Taranto, Circuit Judges.
LOURIE, Circuit Judge.
Birdeye L. Middleton appeals from the decision of the United States Court of Appeals for Veterans Claims (the "Veterans Court") affirming the decision of the Board of Veterans' Appeals (the "Board") denying a disability rating in excess of 20% for his service-connected diabetes. See Middleton v. Shinseki, No. 10-4222, 2012 WL 2180580 (Vet.App. June 15, 2012) (unpublished). Because the Veterans Court did not err in interpreting the governing regulations and we lack jurisdiction to review the Veterans Court's application of the regulations to the facts, we affirm.
Middleton served on active duty from January 1964 to February 1990. He first sought compensation for his type II diabetes mellitus in October 2001. In July 2002, a Department of Veterans Affairs ("VA") Regional Office ("RO") granted service connection, assigning a disability rating of 20% pursuant to 38 C.F.R. § 4.119, Diagnostic Code ("DC") 7913. See In re Middleton, No. 05-15 604, slip op. at 5 (Bd.
Vet.App. Aug. 27, 2010). Middleton sought an increased rating in 2008, which the RO denied in March 2009 after a VA physical examination. Id. Middleton filed a timely Notice of Disagreement, and the RO issued a Statement of the Case ("SOC") in December 2009. Id. Middleton then filed an appeal, and the RO issued a supplemental SOC in January 2010. Id.
In December 2009, the VA provided Middleton with a further physical examination that confirmed the diagnosis of type II diabetes mellitus. For that condition he was treated with three oral hypoglycemic agents and daily injections of the drug Byetta®. Id. at 6. Byetta® is a synthetic peptide that induces the body to secrete endogenous insulin. In August 2010, the Board again denied a rating increase despite Middleton's assertions that he met the criteria for a 40% rating on the grounds that his diet was restricted, his activities were regulated, and he used an oral hypoglycemic agent. Id.
The Board found that Middleton was only entitled to a 20% rating. It stated, "Though [Middleton] is on a restricted diet, has regulation of activities, and uses an oral hypoglycemic agent, he does not use insulin to regulate his diabetes." In re Middleton, No. 05-15 604, slip op. at 4. The Board further found that neither Middleton's VA treatment records nor records from his private physician mentioned that he required insulin, and that treatment records from January through June of 2008 specifically referred to him as a non-insulin dependent diabetic. Id. at 6–7.
The Board ultimately found that, while Byetta® is a medication used to control diabetes, it is not insulin, and therefore the medical evidence of record showed that Middleton did not require insulin. Id. at 7. The Board emphasized that the "[u]se of insulin is a necessary element for the 40-percent rating; the fact that [Middleton] has not been required to use insulin thus precludes his being assigned this increased rating." Id.
Middleton then appealed to the Veterans Court and again argued that he was entitled to a rating in excess of 20%. The court disagreed and affirmed the denial by the Board because medical evidence did not show that Middleton was prescribed insulin. Middleton, 2012 WL 2180580 at *2. Middleton argued that treatment with Byetta® injections was analogous to, yet admittedly not identical to, requiring insulin, but the court held that the plain language of DC 7913 recites "insulin" and does not include a supposed substitute. Id.
Middleton also argued that his diabetes was more closely related to the criteria for a 40% rating and that 38 C.F.R. § 4.7, which provides that the higher of two evaluations will be assigned if the veteran's disability picture more nearly approximates the criteria required for that rating, was applicable to his claim. Id. at *3. The Veterans Court nevertheless held that § 4.7 did not apply because, following its own precedent in Camacho v. Nicholson, 21
Vet.App. 360 (2007), a veteran could not be rated at 40% for diabetes when he only satisfied two of the criteria for that rating, as did Middleton. Id.
This appeal followed.
Our jurisdiction to review decisions of the Veterans Court is limited by statute. 38 U.S.C. § 7292. We "have exclusive jurisdiction to review and decide any challenge to the validity of any statute or regulation or any interpretation thereof [by the Veterans Court] . . . and to interpret constitutional and statutory provisions, to the extent presented and necessary to a decision." Id. § 7292(c). We may not, however, absent a constitutional challenge, "review (A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case." Id. § 7292(d)(2). We therefore generally lack jurisdiction to review challenges to the Board's factual determinations or to any application of law to fact. See, e.g., Johnson v. Derwinski, 949 F.2d 394, 395 (Fed. Cir. 1991). But we do have jurisdiction here to determine the proper interpretation of a regulation such as DC 7913. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009) (exercising jurisdiction over review of Veterans Court's interpretation of regulation with rating schedule); Forshey v. Principi, 284 F.3d 1335, 1338 (Fed. Cir. 2002) (en banc).
Section 4.119 of the VA regulations sets forth a schedule of disability ratings for diseases of the endocrine system. See 38 C.F.R. § 4.119. Within that schedule, Diagnostic Code 7913 prescribes ratings for diabetes mellitus. See id., DC 7913. The code recognizes five levels of disability, expressed in terms of percentages, which "represent as far as can practicably be determined the average impairment in earning capacity resulting from" the ...